Dowd v. Berndtson

• Decision Date: 21 December 2012
• Docket Number: Docket No. 1–12–2376.
• Citation: 2012 IL App (1st) 122376,983 N.E.2d 34,367 Ill.Dec. 880
• Parties: Lisa DOWD, Plaintiff–Appellee, v. Scott A. BERNDTSON and Scott A. Berndtson, P.C., an Illinois Corporation, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 122376

983 N.E.2d 34

367 Ill.Dec. 880

Lisa DOWD, Plaintiff–Appellee,

v.Scott A. BERNDTSON and Scott A. Berndtson, P.C., an Illinois Corporation, Defendants–Appellants.

Docket No. 1–12–2376.

Appellate Court of Illinois, First District, Sixth Division.

Dec. 21, 2012.

Daniel F. Konicek, Michael P. Hannigan, and Amanda J. Hamilton, all of Konicek & Dillon, P.C., of Geneva, for appellants.

No brief filed for appellee.

OPINION

Justice R. GORDON delivered the judgment of the court, with opinion.

[367 Ill.Dec. 883]¶ 1 Plaintiff Lisa Dowd brought a legal malpractice action in the circuit court of Cook County against defendants Scott A. Berndtson and Scott A. Berndtson, P.C., in connection with defendants' representation in certain matters related to plaintiff's divorce. Defendants filed a motion to transfer the case pursuant to the doctrine of forum non conveniens, claiming the case should be litigated in Du Page County instead of Cook County. The trial court denied defendants' motion and we granted defendants' petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006). For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 At the end of 1999, plaintiff hired attorney Michael Minton and his law firm to represent her in a dissolution of her marriage, and in March 2001, plaintiff and her ex-husband entered into a settlement agreement, which was entered as part of a judgment for dissolution in the circuit court of Cook County. The case was initially filed in Cook County but was later transferred to Du Page County because plaintiff, her ex-husband, and their children all resided in Du Page County. Plaintiff now resides in Florida.

¶ 4 On February 24, 2003, plaintiff hired attorney Wendy Morgan and her law firm to represent her in postjudgment proceedings, which she did until withdrawing her appearance on July 26, 2006; the postjudgmentproceedings largely took place in Du Page County.

¶ 5 In February 2007, plaintiff hired defendants to explore possible malpractice actions against her counsel, including Morgan, and in March 2007, defendants filed a legal malpractice action on plaintiff's behalf against Minton, the attorney who handled the initial 2001 dissolution settlement and was also involved in postjudgment matters; defendants failed to file a claim against Morgan and the statute of limitations for such an action has now expired.

¶ 6 Plaintiff filed an amended complaint for legal malpractice against defendants on August 10, 2010, in the circuit court of Du Page County based on defendants' failure to file a legal malpractice claim against Morgan.

¶ 7 On December 23, 2010, defendants filed a motion to dismiss plaintiff's amended complaint pursuant to section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2010)), and on February 18, 2011, plaintiff filed a second amended complaint in the circuit court of Du Page County.

¶ 8 On February 24, 2011, plaintiff voluntarily dismissed her complaint, and on February 23, 2012, plaintiff refiled her complaint in the circuit court of Cook County.

¶ 9 On April 10, 2012, defendants filed a motion to transfer the case pursuant to forum non conveniens. The motion claimed that the underlying marital settlement agreement was entered into in Du Page County, as was the dissolution of marriage judgment. Additionally, all of the postjudgment proceedings occurred in Du Page County. The motion further claimed that defendants' principal place of business was in Du Page County, and that all of the work performed by defendants was performed in Du Page County.

¶ 10 In response, plaintiff claimed that the motion should be denied because the underlying dissolution occurred in Cook County, not Du Page County as defendants claimed; defendant Berndtson resided in Cook County; and defendants could not show inconvenience that greatly outweighed plaintiff's substantial right to her chosen forum. Plaintiff further claimed that her prior attorneys, Minton and Morgan, both represented her in and have their registered offices in Cook County; and that other witnesses likely to be called, such as plaintiff's ex-husband's attorney and defendant Berndtson's wife, also have offices in Cook County. Plaintiff's affidavit, attached to her response, also stated that Cook County was more convenient for her because when she travels to Chicago from Florida, she flies into and stays in Cook County.

¶ 11 On July 17, 2012, in a written order, the trial court denied defendants' motion to transfer. The trial court first discussed the private interest factors at issue. The court noted that at the time of the alleged incident, plaintiff did not reside in Cook County. However, the underlying dissolution action was filed in Cook County and the judgment for dissolution was recorded in Cook County; plaintiff's divorce attorneys, Minton and Morgan, also had offices located in Cook County. Accordingly, the court concluded that the alleged legal malpractice arising from plaintiff's dissolution proceedings occurred in Cook County. The court also noted that while postjudgment proceedings were eventually transferred to Du Page County, where plaintiff resided at the time, plaintiff now lives in Florida, which is why she refiled the action in Cook County. Thus, the trial court determined that plaintiff's choice of forum should be afforded deference.

¶ 12 Next, the court noted that defendants failed to demonstrate that Cook County was inconvenient and that Du Page County was more convenient to all of the parties. Defendant Berndtson resides in Cook County, even though his office is in Du Page County. Further, plaintiff lives in Florida and stated that Cook County was the more convenient forum due to its proximity to O'Hare and Midway airports. Thus, the court found that the convenience of the parties did not weigh in favor of the transfer.

¶ 13 The court further noted that Cook County arguably enjoyed a predominant connection to the litigation at issue, in that the underlying judgment for dissolution was litigated in Cook County and defendant Berndtson currently resides in Cook County. Additionally, all of the potential witnesses except for plaintiff either work or reside in Cook County. The court acknowledged that a portion of defendants' alleged legal malpractice and a portion of the postjudgment proceedings took place in Du Page County, but determined that the tie was minimal.

¶ 14 Alternatively, even if there was no predominant connection to Cook County, the court found that the parties and potential witnesses are scattered throughout Cook and Du Page counties, but that all of the potential witnesses reside or work in Cook County; there was no evidence of a single potential witness residing in Du Page County. Thus, the court found that it was reasonable for it to find that both counties had a connection to the litigation and to deny the transfer. The court also pointed out that Cook and Du Page counties were adjacent counties and that the travel distances for defendants and potential witnesses would be minimally different.

¶ 15 The court gave little weight to the fact that the location of the documents at issue was in Du Page County, noting that the documents could be easily transported. In sum, the court found, the private interest factors did not strongly favor a transfer to Du Page County.

¶ 16 The trial court also considered the public interest factors at issue. The court noted that the first two factors—the interest in deciding localized controversies locally and the unfairness of imposing the expense of a trial and the burden of jury duty on residents of a county with little connection to the litigation—did not weigh strongly in favor of a transfer. The court found that residents of Cook County “certainly” have an interest in deciding the controversy since it involved an underlying dissolution proceeding recorded in Cook County as well as alleged legal malpractice claims against attorneys who either worked or resided in Cook County.

¶ 17 The court then considered the court's docket and examined data indicating that similar cases proceed to verdict nearly two months faster in Cook County than in Du Page County, despite Cook County being a more congested forum. Thus, the court found that the final public interest factor did not weigh in favor of a transfer.

¶ 18 In balancing the private and public interest factors and evaluating the totality of the circumstances, the trial court found that the balance of factors did not favor transferring the case to Du Page County. Consequently, the court denied defendants' motion to transfer.

¶ 19 Defendants filed a motion to reconsider, noting that plaintiff's current legal malpractice case against Minton was proceeding in Du Page County; the trial court denied the motion. Defendants then filed a petition for leave to appeal to this court pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Sept. 1, 2006), which we granted, and the instant appeal follows.

¶ 20 ANALYSIS

¶ 21 As an initial matter, we note that plaintiff failed to file an appellee's brief in this case. In such a circumstance, a court of review has essentially two choices. “When the record is simple, and the claimed errors are such that this court can easily decide them on the merits without the aid of an appellee's brief, this court should decide the appeal on its merits.” Plooy v. Paryani, 275 Ill.App.3d 1074, 1088, 212 Ill.Dec. 317, 657 N.E.2d 12 (1995). “Otherwise, if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed.” Plooy, 275 Ill.App.3d at 1088, 212 Ill.Dec. 317, 657 N.E.2d 12 (citing First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976)). In the case at bar, we conclude that the record and the issues before us are clear enough that the appeal should be decided on...